Enforcing Nonjusticiable Rights In Indonesia
DOI:
https://doi.org/10.31078/consrev625Keywords:
Constitutional Court, Economic, Indonesia Social RightsAbstract
A debate over which branch of government is the most appropriate institution to deal with economic and social rights is far from ended. Is it the legislature which is democratically elected or the unelected Court that should determine the enforcement of economic and social rights? Problems pertaining to the lack of legitimacy and competence often come up when the Court is involved in determining economic and social rights. These problems arise because a court is not democratically elected and is not equipped with necessary tools to deal with such a complex issue in economic and social rights. However, others believe that the Court’s involvement in determining economic and social rights can strengthen democracy since the Court may enforce matter that is not sufficiently addressed by the lawmaker. This paper will address the above issue in context of Indonesia. Should the Court involve in protecting economic and social rights? If so, how far the Court can go to determine economic and social rights? This paper acknowledges that economic and social rights are a broad and complex topic. Therefore, this paper limits the discussion by analyzing four selected judicial rulings which have significant impact in the protection of economic and social rights in Indonesia i.e. the judicial review cases on Electricity Law, Water Resources Law, National Education System Law and National Budget Law. This paper argues that it is necessary for the Court to involve in determining economic and social rights, especially when the lawmaker does not sufficiently address issues related to economic and social rights in its legislative product. The Court may fill the gaps in the protection of Economic and Social rights. The Court roles in this context, however, potentially encroach the authority of other branches of governments i.e. the executive and the legislative. Therefore, the Court roles should be carefully and strategically conducted so that it does not infringe the jurisdiction of the government and the lawmakers.References
Bellamy, Richard. Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy. Cambridge University Press, 2007.
Brosseau, Laurence and Marc-Andre Roy. “The Notwithstanding Clause of the Charter.” A Background Paper, Library of Parliament, 7 May 2018, https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/BackgroundPapers/PDF/2018-17-e.pdf accessed 27 January 2020.
Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Bobbs-Merrill Company, 1962.
Davis, Dennis. “Socio-Economic Rights: Has the Promise of Eradicating the Divide between First and Second-Generation Rights Been Fulfilled?” In Comparative Constitutional Law, edited by Rosalind Dixon and Tom Ginsburg.
Cheltenham: Edward Elgar Publishing, 2011.
Desierto, Diane A. “Justiciability of Socio-Economic Rights: Comparative Powers, Roles, and Practices in the Philippines and South Africa.” Asian-Pacific Law & Policy Journal 11 (2009), http://blog.hawaii.edu/aplpj/files/2011/11/APLPJ_11.1_desierto.pdf.
Dixon, Rosalind. “Creating Dialogue About Socioeconomic Rights: Strong-Form Versus Weak-Form Judicial Review Revisited.” International Journal of Constitutional Law 5, no. 3 (2007).
Galligan, D.J. “Rewviw Work: Discretionary Powers: A Legal Study of Official Discretion.” The Cambridge Law Journal 46, no. 3 (November 1987): 241, https://www.jstor.org/stable/4507090.
Gardbaum, Stephen. “The Structure and Scope of Constitutional Rights.” In Comparative Constitutional Law, edited by Tom Ginsburg and Rosalind Dixon. Edward Elgar Publishing, 2011.
Goldstone, Justice Richard J. “Foreword.” In Courting Social Justice: Judicial Enforcement of Social and Economic Rights in Developing World, edited by Varun Gauri and Daniel M Brink, 2008).
Government of the Republic of South Africa v. Grootboom and others 2000 (11)BCLR 1169 (CC).
Heymann, Jody, Aleta Sprague and Amy Raub. Advancing Equality: How Constitutional Rights Can Make a Difference Worldwide. Oakland: University of California Press, 2020.
International Commission of Jurist (ICJ). “Court and The Legal Enforcement of Economic Social and Cultural Rights: Comparative Experience of Justiciability.” A Report, International Commission of Jurist Publisher, 2008.
https://www.refworld.org/docid/4a7840562.html.
Judicial Review of National Budget Law, Decision of Constitutional Court No 011/PUU-III/2005 (The Constitutional Court of the Republic of Indonesia 2005).
Judicial Review of National Budget Law, Decision of Constitutional Court No 012/PUU-III/2005 (The Constitutional Court of the Republic of Indonesia 2005).
Judicial Review of National State Budget Law, Decision of Constitutional Court No. 026/PUU-IV/2006 (The Constitutional Court of the Republic of Indonesia 2006).
Judicial Review of Water Resources Law, Decision of Constitutional Court No. 058-059-060-063/PUU-II/2004 and 008/PUU-III/2005 (The Constitutional Court of the Republic of Indonesia 2005).
Judicial Review of Electricity Law, Decision of Constitutional Court No 001-021- 022/PUU-I/2003 (The Constitutional Court of the Republic of Indonesia 2003).
Judicial Review of Water Resources Law, Decision of Constitutional Court No 85/PUU-XI/2013 (The Constitutional Court of the Republic of Indonesia 2013).
Jackson, Vicki C., and Mark V. Tushnet. Comparative Constitutional Law. New York: Foundation Press, 1999.
King, Jeff. Judging Social Rights. London: University of College London, 2012.
Langford, Malcolm. “The Justiciability of Social Rights: from Practice to Theory.” In Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, edited by Malcom Langford, Cambridge University Press, 2008.
Law of the Republic of Indonesia, Number 7 of 2004 on Water Resource.
Law of the Republic of Indonesia, Number 20 of 2002 on Electricity.
Law of the Republic of Indonesia, Number 20 of 2003 on National Education System.
Law of the Republic of Indonesia on the 2005 State Budget.
Lindsey, Tim. “Devaluing Asian Values, Rewriting Rule of Law.” In Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US, edited by Randall Peerenboom. London: Routledge, 2004.
Mitchell, Kevin J. “Neither Purse nor Sword: Lessons Europe Can Learn om American Courts’ Struggle for Democratic Legitimacy.” Case Western.
Reserve. Journal of International Law 38 (2007).
Nolan, Aoife, Bruce Porter and Malcolm Langford. “The Justiciability of Social and Economic Rights: An Updated Appraisal.” A CHRGJ Working Paper No. 15, 2020.
Numerus Clausus I Case (1972), 33 BverfGE 303.
Ramcharan, Bertrand G. Judicial Protection of Economic, social and Cultural Rights: Cases and Materials, The Raoul Wallenberg Institute Human Rights Library Volume 22. Boston: Martinus Nijhoff, 2005.
Scott, Graig and Patrick Macklem. “Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution.” University of Pennsylvania Law Review141, no.1 (November 1992), https://scholarship.law.upenn.edu/penn_law_review/vol141/iss1/2/.
Sunstein, Cass R. “Against Positive Rights, in Western Rights? Post-Communist Application.” In Comparative Constitutional Law, edited by Andrass Sajo, 1996.
The 1945 Indonesian Constitution.
The 1949 Constitution of the Republic of Hungary.
The 1987 Philippines Constitution.
The 1937 Constitution of Ireland.
The India Constitution.
The South African Constitution.
Tushnet, Mark. “State Action, Social Welfare Rights, and the Judicial Role: Some Comparative Observations.” Chicago Journal of International Law 3, no. 2 (2002), https://chicagounbound.uchicago.edu/cgi/viewcontent.
cgi?article=1442&context=cjil.
Tushnet, Mark. “Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law.” 2009.
United Nations Human Rights, Office of the High Comissioner. “Key concepts on ESCRs-Are Economic, Social and Cultural Rights Fundamentally Different from Civil and Political Rights?” Accessed January 27, 2020. https://www.ohchr.org/EN/Issues/ESCR/Pages/AreESCRfundamentallydifferentfromcivilandpoliticalrights.aspx.
Venning, Philippa. “Determination of Economic, Social and Cultural Rights by the Indonesian Constitutional Court.” Australian Journal of Asian Law 10, no. 1 (October 2008).
Brosseau, Laurence and Marc-Andre Roy. “The Notwithstanding Clause of the Charter.” A Background Paper, Library of Parliament, 7 May 2018, https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/BackgroundPapers/PDF/2018-17-e.pdf accessed 27 January 2020.
Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Bobbs-Merrill Company, 1962.
Davis, Dennis. “Socio-Economic Rights: Has the Promise of Eradicating the Divide between First and Second-Generation Rights Been Fulfilled?” In Comparative Constitutional Law, edited by Rosalind Dixon and Tom Ginsburg.
Cheltenham: Edward Elgar Publishing, 2011.
Desierto, Diane A. “Justiciability of Socio-Economic Rights: Comparative Powers, Roles, and Practices in the Philippines and South Africa.” Asian-Pacific Law & Policy Journal 11 (2009), http://blog.hawaii.edu/aplpj/files/2011/11/APLPJ_11.1_desierto.pdf.
Dixon, Rosalind. “Creating Dialogue About Socioeconomic Rights: Strong-Form Versus Weak-Form Judicial Review Revisited.” International Journal of Constitutional Law 5, no. 3 (2007).
Galligan, D.J. “Rewviw Work: Discretionary Powers: A Legal Study of Official Discretion.” The Cambridge Law Journal 46, no. 3 (November 1987): 241, https://www.jstor.org/stable/4507090.
Gardbaum, Stephen. “The Structure and Scope of Constitutional Rights.” In Comparative Constitutional Law, edited by Tom Ginsburg and Rosalind Dixon. Edward Elgar Publishing, 2011.
Goldstone, Justice Richard J. “Foreword.” In Courting Social Justice: Judicial Enforcement of Social and Economic Rights in Developing World, edited by Varun Gauri and Daniel M Brink, 2008).
Government of the Republic of South Africa v. Grootboom and others 2000 (11)BCLR 1169 (CC).
Heymann, Jody, Aleta Sprague and Amy Raub. Advancing Equality: How Constitutional Rights Can Make a Difference Worldwide. Oakland: University of California Press, 2020.
International Commission of Jurist (ICJ). “Court and The Legal Enforcement of Economic Social and Cultural Rights: Comparative Experience of Justiciability.” A Report, International Commission of Jurist Publisher, 2008.
https://www.refworld.org/docid/4a7840562.html.
Judicial Review of National Budget Law, Decision of Constitutional Court No 011/PUU-III/2005 (The Constitutional Court of the Republic of Indonesia 2005).
Judicial Review of National Budget Law, Decision of Constitutional Court No 012/PUU-III/2005 (The Constitutional Court of the Republic of Indonesia 2005).
Judicial Review of National State Budget Law, Decision of Constitutional Court No. 026/PUU-IV/2006 (The Constitutional Court of the Republic of Indonesia 2006).
Judicial Review of Water Resources Law, Decision of Constitutional Court No. 058-059-060-063/PUU-II/2004 and 008/PUU-III/2005 (The Constitutional Court of the Republic of Indonesia 2005).
Judicial Review of Electricity Law, Decision of Constitutional Court No 001-021- 022/PUU-I/2003 (The Constitutional Court of the Republic of Indonesia 2003).
Judicial Review of Water Resources Law, Decision of Constitutional Court No 85/PUU-XI/2013 (The Constitutional Court of the Republic of Indonesia 2013).
Jackson, Vicki C., and Mark V. Tushnet. Comparative Constitutional Law. New York: Foundation Press, 1999.
King, Jeff. Judging Social Rights. London: University of College London, 2012.
Langford, Malcolm. “The Justiciability of Social Rights: from Practice to Theory.” In Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, edited by Malcom Langford, Cambridge University Press, 2008.
Law of the Republic of Indonesia, Number 7 of 2004 on Water Resource.
Law of the Republic of Indonesia, Number 20 of 2002 on Electricity.
Law of the Republic of Indonesia, Number 20 of 2003 on National Education System.
Law of the Republic of Indonesia on the 2005 State Budget.
Lindsey, Tim. “Devaluing Asian Values, Rewriting Rule of Law.” In Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US, edited by Randall Peerenboom. London: Routledge, 2004.
Mitchell, Kevin J. “Neither Purse nor Sword: Lessons Europe Can Learn om American Courts’ Struggle for Democratic Legitimacy.” Case Western.
Reserve. Journal of International Law 38 (2007).
Nolan, Aoife, Bruce Porter and Malcolm Langford. “The Justiciability of Social and Economic Rights: An Updated Appraisal.” A CHRGJ Working Paper No. 15, 2020.
Numerus Clausus I Case (1972), 33 BverfGE 303.
Ramcharan, Bertrand G. Judicial Protection of Economic, social and Cultural Rights: Cases and Materials, The Raoul Wallenberg Institute Human Rights Library Volume 22. Boston: Martinus Nijhoff, 2005.
Scott, Graig and Patrick Macklem. “Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution.” University of Pennsylvania Law Review141, no.1 (November 1992), https://scholarship.law.upenn.edu/penn_law_review/vol141/iss1/2/.
Sunstein, Cass R. “Against Positive Rights, in Western Rights? Post-Communist Application.” In Comparative Constitutional Law, edited by Andrass Sajo, 1996.
The 1945 Indonesian Constitution.
The 1949 Constitution of the Republic of Hungary.
The 1987 Philippines Constitution.
The 1937 Constitution of Ireland.
The India Constitution.
The South African Constitution.
Tushnet, Mark. “State Action, Social Welfare Rights, and the Judicial Role: Some Comparative Observations.” Chicago Journal of International Law 3, no. 2 (2002), https://chicagounbound.uchicago.edu/cgi/viewcontent.
cgi?article=1442&context=cjil.
Tushnet, Mark. “Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law.” 2009.
United Nations Human Rights, Office of the High Comissioner. “Key concepts on ESCRs-Are Economic, Social and Cultural Rights Fundamentally Different from Civil and Political Rights?” Accessed January 27, 2020. https://www.ohchr.org/EN/Issues/ESCR/Pages/AreESCRfundamentallydifferentfromcivilandpoliticalrights.aspx.
Venning, Philippa. “Determination of Economic, Social and Cultural Rights by the Indonesian Constitutional Court.” Australian Journal of Asian Law 10, no. 1 (October 2008).
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Published
2020-12-30
How to Cite
Omara, A. (2020). Enforcing Nonjusticiable Rights In Indonesia. Constitutional Review, 6(2), 311–337. https://doi.org/10.31078/consrev625
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